Strasbourg cases

I thought that the readers of this blog might be interested in the extracts that follow from the Daily Mail, 20 years ago yesterday (28 Sep 1995). The newspaper was reporting on the famous, and indeed controversial McCann v UK (‘Gibraltar shootings’ case). If I recall correctly, The Sun’s headline was ‘The Euro-Clown Court’. (See also The Independent’s reporting here, this BBC site for historical interest, and click on the picture for the 1988 ITV documentary ‘Death on the Rock’ [which concerns the shootings, not the Strasbourg case]).

An interview (conducted by Graham Butler: University of Copenhagen) with former (‘Icelandic’*, Strasbourg) Judge David Thór Björgvinsson has just been published in Utrecht Journal of International and European Law. It is available here (thanks to Jörg Polakiewicz for ‘tweeting’ this).

The former Judge (now Professor) Thór Björgvinsson was a Strasbourg Judge over the years 2004-2013. Much of his interview concerns the Opinion 2/13 from the Court of Justice of the European Union on the Union’s accession to the European Convention on Human Rights. What is said there is fascinating, whilst some questions and answers at the end of the interview may be of more direct interest to readers of this blog given the critique offered of the Court as an institution that is, he maintains, less assertive than it has been in the past, due to the pressure exerted upon it by States (above all the UK),

Former Judge Thór Björgvinsson makes some interesting comments about the influence of some of the most senior members of the Court Registry on Strasbourg judicial decision-making Continue reading →

The Court (sitting as a Chamber) declared this application inadmissible on the above date. The domestic case attracted great interest because it concerned the euthanasia issue (in fact, assisted dying). For constitutional lawyers the positions adopted by various of the UK Supreme Court judges under the Human Rights Act regime was of considerable interest, and this was at the heart of the Strasbourg decision.

This brief comment deals solely with the Nicklinson application. Arguably, the Court demonstrated its unwillingness to extend Article 8 law in a way that would, on the facts, require the domestic courts to challenge an Act of Parliament (here section 2(1) of the Suicide Act 1961). In particular, the Court refused to envisage that its jurisprudence on Article 8 should impose on the domestic courts an obligation to pronounce upon the merits of what was at stake in Nicklinson – the legality of the UK’s blanket ban in assisted dying, which was enshrined in section 2(1) of the 1961 Act – to a greater extent than the UKSC had under its understanding of the HRA regime (in Strasbourg words, it would not forced upon the domestic courts ‘an institutional role not envisaged by the domestic constitutional order’ – see below).

Seen another way, the judgment evidenced Strasbourg’s respect for the internal distribution of powers and decision-making process (on the issue at stake) within the UK (as it put it, ‘Parliament’s discretion to legislate as it sees fit in… [an] area’ that was within the UK’s margin of appreciation).

The decision may also be notable for the Court’s statement (see below) that ‘when [it] concludes in any given case that an impugned legislative provision falls within the margin of appreciation, it will often be the case that the Court is, essentially, referring to Parliament’s discretion to legislate as it sees fit in that particular area’.Continue reading →